Shamim v. State

HARVEY BROWN

Affirmed; motion for rehearing overruled.

Dustan Neyland, Kingwood, TX, for Appellant. Devon Anderson, District Attorney, Kevin Keating, Assistant District Attorney, Harris County, Houston, TX, for State.

HARVEY BROWN, Justice.

Yrooj Shamim filed a motion for rehearing of our opinion issued on June 19, 2014. Shamim's motion for rehearing is overruled, our June 19 opinion is withdrawn, and the following substitute opinion is issued in its place.

A jury convicted Yrooj Shamim of assault of a family member—his wife, S. Zehra. The trial court sentenced Shamim to one year of confinement but suspended the sentence to place Shamim on community supervision for two years. Shamim filed a motion for new trial, arguing that his trial counsel provided ineffective assistance of counsel. Following an evidentiary hearing, the trial court denied the motion.

In three issues, Shamim contends that the trial court erred by denying his motion for new trial because his counsel failed to (1) complete a thorough factual investigation of his case, (2) keep him reasonably informed of the status of his case or prepare him for trial, and (3) recognize that a conflict of interest existed in counsel's representation of Shamim and his father, both of whom were charged with assaulting Zehra.

Similarly, in Zalman, the defendant presented an argument at the new-trial hearing that was not contained in his timely-filed motion. 400 S.W.3d at 592. After the 30–day period for amendment expired, the defendant filed a “memorandum of law” arguing a new basis for the trial court to grant a new trial. Id. The defendant proceeded to argue that point at the hearing, and, despite the State's objection to the untimely argument, the trial court granted a new trial on that basis. Id. The Court of Criminal Appeals reversed, holding that Rule 21 requires that the grant of new trial be consistent with the argument contained in the timely-filed motion and related evidence. Id. at 594–95 (explaining that, to hold otherwise, “would defeat the notice requirements of the motion.”). The trial court was not permitted to consider the arguments contained in the late-filed “memorandum of law” or asserted at the hearing on the motion. Id.

Shamim filed his motion for new trial within the 30–day period permitted and did not file an amendment to that motion. The hearing on Shamim's motion occurred more than 30 days after the trial court imposed its sentence. Shamim raised the conflict-of-interest argument for the first time at the hearing and admitted that he had not decided to make the argument until mid-hearing. The State had no prior notice of this contention and objected to the argument as untimely. Accordingly, his new argument could not support the grant of a new trial. Zalman, 400 S.W.3d at 594–95; Cueva, 339 S.W.3d at 858–59, 879; see also Cueva, 354 S.W.3d at 822 (Alcala, J., concurring). Shamim may not complain on appeal that the trial court erred by denying him a new trial on those grounds. Zalman, 400 S.W.3d at 594–95; Cueva, 339 S.W.3d at 858–59, 879; see also Cueva, 354 S.W.3d at 822 (Alcala, J., concurring). To conclude otherwise would lead to an anomalous result, preventing parties from raising new arguments in written amendments to new-trial motions while allowing them to assert new arguments at the hearing on the new-trial motions without notice to the trial court or the State of the new assertions. The appellate rules do not permit such a result.

While we conclude that this is the proper result and the one required by Rule 21 and the Zalman and Cueva cases, we note that there are other, earlier cases that contain language that could be argued to support an opposite result. See, e.g., Keeter v. State, 175 S.W.3d 756, 759–60 (Tex.Crim.App.2005) (stating that issue is not preserved unless raised “at some point during the motion for new trial proceedings,” then concluding that movant failed to raise issue); Marines v. State, 292 S.W.3d 103, 109 n. 3 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd) (“Because appellant failed to raise the issue ... in either his motion for a new trial or during the hearing on that motion, the argument is waived ....”); Roberts v. State, 749 S.W.2d 624, 625 (Tex.App.-Fort Worth 1988, no pet.) (concluding that movant preserved error based on argument made at new-trial hearing).

In Roberts, a defendant presented an argument at the new-trial hearing that was not contained in his written motion. 749 S.W.2d at 625. There is no indication that the State objected to the new argument. Citing former Rule 52(a), the predecessor to Rule 33.1, the court held that, by making the argument at the hearing, appellant had “sufficiently apprised the trial court of the alleged error and gave it the opportunity to rule on the matter which appellant is raising in his sole point of error. Therefore, appellant did not waive his right to appeal on this point.” Id. (citation omitted). Because the State did not object to the late-added argument in Roberts, Rule 21 did not limit that defendant to the arguments contained in his new-trial motion. See Clarke v. State, 270 S.W.3d 573, 580–81 (Tex.Crim.App.2008) (holding that trial court had authority to consider argument made at new-trial hearing because State did not object to newly added argument).

A more recent Fort Worth appellate court case, Pitman v. State, contains similar language and cites to Keeter without reference to Cueva. See Pitman v. State, 372 S.W.3d 261, 264 n. 2 (Tex.App.-Fort Worth 2012, pet. ref'd). In Pitman, the appellate court held that the defendant failed to preserve his claim that the trial court should have granted a new trial based on newly discovered evidence. Id. The defendant raised that issue for the first time on appeal of the denial of his motion for new trial. Id. The appellate court held that the argument was not preserved because “Appellant did not raise this issue in his new-trial motion or at the new-trial hearing .... Because Appellant complains on appeal that the trial court erred by denying his motion for new trial, he must have raised his newly-discovered evidence claim during the new-trial hearing to preserve the complaint for appellate review.” Id. The Pitman case did not include Rule 21 in its analysis or mention or consider the previously-decided Cueva case.

While there is language in the Keeter, Marines, Roberts, and Pitman cases that could be argued to support Shamim's position that he can raise an issue for the first time at a hearing on a new-trial motion after the 30–day amendment period has expired, the requirements of Rule 21, as interpreted in Cueva and, most recently, in Zalman, mandate otherwise. Tex.R.App. P. 21. For the trial court to properly consider a new argument in support of granting a new trial, either the argument has to have been included in a timely-filed motion or amendment or the State must acquiesce to the untimely addition. Tex.R.App. P. 21.4; Zalman, 400 S.W.3d at 594–95; Cueva, 339 S.W.3d at 858–59, 879; see also Cueva, 354 S.W.3d at 822 (Alcala, J., concurring).

Shamim did not include a conflict-of-interest claim in his new-trial motion. The State objected when he raised that argument at the hearing, after the 30–day amendment deadline. We, therefore, conclude that Rule 21 prohibits Shamim from obtaining a new trial based on a late-added argument to which the State timely objected.

Accordingly, in the context of an appeal of the denial of his new-trial motion, we conclude that Shamim has not preserved the conflict-of-interest issue for appellate review and, therefore, overrule Shamim's third issue.

Having overruled all three of Shamim's issues, we affirm the trial court's judgment. -------- Notes: